BY C.D. STELZER

first published in the Riverfront Times (St. Louis), Feb. 1, 1995

When the silk-stocking lawyer addressed the St. Louis County Council meeting last Thursday afternoon, his delivery came across with all of the decorum of a chained pit bull.

The Council members listened, dutifully, as the fast-talking attorney unleashed his legal arguments. Two of the seven council members are lawyers themselves. A couple other are crusty union men familiar with the art of hard bargaining.
In the end, though, the threats of litigation and financial loss, failed to sway the Council’s decision to enact tough air quality requirements for the planned Times Beach incinerator. If the final version of the controversial ordinance is passed as expected this week, the County will have the power to force a multi-national corporation, the federal government and the state of Missouri to abide by local law.
That’s what all the barking was about at last week’s Council meeting and here’s why:

Syntex , the corporation liable for the cleanup of Times Beach and 26 other dioxin sites in eastern Missouri, signed a consent decree with the Environmental Protection Agency (EPA) and the Missouri Department of Natural Resources (DNR) in 1990. Although St. Louis County sought to be a party to that settlement, a federal judge nixed the idea. The terms of the consent decree, however, allow St. Louis County to issue an air quality permit before the planned incinerator can operate.

The new County ordinance would require the Times Beach incinerator to emit no more dioxin than the level specified in the EPA’s own health risk assessment published in November. The EPA said then that a worst case scenario would be the release of 0.15 nanograms of dioxin per cubic meter of air. This was based on previous tests results at another incinerator site. According to EPA calculations, the destruction removal efficiency (DRE) at that emissions level would be 99.9997 percent. This is below the 99.9999 percent DRE, or six-nines, that the EPA previously set as its standard. The EPA now maintains that achieving six-nines is only required during its test burn, which is conducted not on dioxin, but a surrogate more difficult to destroy.

Environmentalists, however, theorize that high concentrations of a surrogate could be more easily destroyed than the low-levels of dioxin found in the contaminated soils here. They point out that a safer alternative technology, Base-catalyzed Decomposition (BCD), has been tested by the EPA and found effective in destroying dioxin at a Superfund site in North Carolina. Last year, the EPA released a study that showed humans have already been overexposed to dioxin, a probable carcinogen that is also known to cause reproductive and immunological problems.

To address these public health concerns, the County ordinance would require future emissions burns meet the 0.15 nanogram standard. If the incinerator did go online, it would be periodically tested, and the burner would be shut down if it failed to meet standards.

In the wake of the County’s moves, Bob Field, the EPA project manager for the Times Beach site, expressed doubts at the Council meeting last week on whether the incinerator’s emissions levels could even be measured. He, nonetheless, reasoned that the incinerator should be fired up. “We say, let’s go ahead and test the incinerator! See what the actual emissions are, or, if we can’t actually measure the emissions, let’s find out what the detection level is. Then let’s make a determination of what the actual risk will be associated with the full scale operation of the unit,” Field told the Council.

The EPA and Syntex are now asserting that meeting the 0.15 nanograms goal would reduce potential cancer deaths to one in five million, which is, according to the EPA, excessively safe. The agency is only committed to reducing the risk to one in a million, and any higher standard imposed by the County goes beyond the federal mandate to protect human health.

In addition, Syntex and the EPA are claiming that Superfund law is exempt from local ordinances, and the consent decree precludes responsible parties from being bound by any statutes passed after the fact.
Councilman Greg Quinn, who represents the 7th district, which includes Times Beach, isn’t buying the EPA’s line.

” The CERCLA law (Comprehensive Environmental Response, Compensation and Liability Act) provides that you have to operate in accordance with federal, state and local law,” says Quinn. “What we’re trying to do is design an ordinance that would guarantee, to the greatest extent possible, the health of the population of St. Louis County. There has been the suggestion that EPA can override local law, but that’s not the way I see it,” says the councilman, who is an attorney. “The consent decree provides for the County to issue the air quality permit. It doesn’t make any sense to provide that and then say (that) federal law and the EPA’s wishes override what it says in the consent decree.”

County Counselor John Ross concurs. “Syntex was a party to the consent decree, and in the consent decree it requires that they get a clean-air permit from St. Louis County. But for that, they might have a very good argument. The standard that they (the County Council) have established is a standard that EPA used in their risk assessment,” says Ross. “An EPA official at last week’s meeting … thought it was a number that would and could likely be achieved. I think what the Council is saying is, if it was achieved at other sites then it ought to be achieved in St. Louis County.”

Edwin L. “Ted” Noel, the attorney for Syntex, couldn’t agree less. He compares the potential health risks posed by the incinerator to a traffic problem. “I don’t know that there is any difference in putting one extra truck on the highway,” says Noel, a member of the prestigious law firm of Armstrong and Teasdale. His opinion of the County ordinance is even more candid. “The federal law says we’ll never get anything cleaned up in this country, if every county, every municipality, every citizen dictates what the standards are” Local standards on dioxin emissions were “frozen” at the time that the consent decree was signed in 1988, according to Noel. Of course, there was no standard back then. If the proposed ordinance does take effect, any delays could raise the cost of the project and Syntex is prepared to sue the County for losses, according to Noel. “I think it puts the County taxpayers at a severe risk, very, very substantial dollars in terms of $500,000 a month,” Noel warned the County Council at last week’s meeting.

County Counselor Ross responded to Noel’s caveat by saying: “Let me say this to you — the threat of money damages is not a good threat to be making at this point, when you’re talking about the safety of St. Louis County residents.” Councilman James E. O’Mara then seconded Ross’s opinion. O’Mara opined that the pipefitters union, which he heads, might benefit in jobs, if the incinerator is built. “But I’d rather spend $500,000 a month of the county’s money than to know that I could have saved a life and not saved it.”

The Council concerns haven’t softened the EPA’s position, however. “The federal law requires that the agency determine what is necessary to protect human health and the environment and (after) that determination is made anything above or beyond that is sort of on the ticket of whoever required it,” says Martha Steincamp, the legal counsel for Region VII of the EPA. “In this case, if the County has things that are over and above what we think are necessary, … they’re going to have to pay for those,” says Steincamp. The EPA counsel says the allowable emissions level that the EPA intends to set is still undetermined. “We won’t know what the number is until the risk assessment is final. Right now we’re still in the public comment phase.”

Meanwhile, the deadline for public comments on the DNR’s draft permit for the incinerator expires in the first week of February. This month, the DNR, EPA and Syntex have been making public pitches to gain support for the incinerator.
Others, including a coalition of environmental groups, are working diligently to stop the incinerator from operating.

U.S. Rep. Jim Talent, the Republican congressman from the district that includes Times Beach, asked the General Accounting Office (GAO) last week to investigate the incinerator project. Talent’s written request was co-signed by chairman of the House Appropriations subcommittee that controls EPA funding.

Steve Boriss the Missouri congressman’s press secretary had this to say about St. Louis County’s efforts. “Talent supports any action that slows this thing up long enough for him to complete what he attempted to do in Congress last session, which is put a rider on the Superfund reauthorization that would require that the Times Beach incinerator could not proceed until alternative technologies have been explored.”